Discussion of Family Law Appeals in Harris, Montgomery, Fort Bend, Brazoria Counties & Across Texas

Opinions, June 2, 2016: An Unsurprising Opinion from the Court of Appeals

The First District Court of Appeals released its memorandum opinion in Rogers v. Rogers, No. 01-15-00224-CV, yesterday. Todd Rogers appealed the trial court’s final decree of divorce from Gina Rogers in two issues: he challenged the trial court’s decision to award the right to make decisions regarding the children’s education to both parents and he challenged a provision in the decree affecting Gina’s obligation to pay child support. The Court of Appeals affirmed with a minimum of fuss.

Both Todd and Gina sought to be named primary JMCs of the couple’s two children, five-year-old V.R. and three-year-old A.R. In the temporary orders signed by the trial court, they were named JMC, with Todd as primary. At jury trial in August 2014, the jury determined Todd should be primary. The remaining issues–child support, P&A, and division of the estate–were submitted to the trial court in September and October, 2014. The trial court entered an order captioned “Court’s Ruling” on January 13, 2015, which divided the couple’s property, set the amount of child support to be paid by Gina to Todd, and determined the remaining P&A issues. The order also included a judgment against Todd for $25,000.00 to be paid by February 1, 2015 “or is susceptible to offset against the child support of Gina Marie Rogers until paid in full.”

The trial court also signed a clarification order on January 28, 2015 which clarified the $25,000 judgment.

The final decree was signed in September 2015 and also carried more detailed language regarding the $25,000 judgment. As with the “Court’s Ruling” order, the final decree abated Gina’s obligation to pay child support and granted her credits against the $25,000 judgment if Todd failed to pay the judgment by a date certain.

On appeal, Todd challenged: 1) the trial court’s decision to award the right to make educational decisions for the children to both parents because, he argued, it conflicted with the jury’s finding that he should determine the children’s primary residence (??); and 2) a provision in the decree which abated Gina’s child support payments in the event Todd didn’t pay the $25,000.00 by a date certain.

Incidentally, a reporter’s record was never filed. You probably know where this is headed.

Not surprisingly, the Court of Appeals overruled Todd’s first issue, finding awarding the decision to make educational decisions to both parents is commonplace and did not conflict with the jury’s findings.

As to the second issue, the Court of Appeals disagreed with Todd’s argument that allowing the child support abatement to stand would allow a party to “negate their entire support obligation by claiming that the other party owed them money as a result of the court prior property division.” On the contrary, the Court of Appeals held, “Gina is ordered to pay monthly child support to Todd. Her child-support payments are only abated in the event that Todd fails to do as he is ordered in the decree.”

Additionally, without a reporter’s record, the Court of Appeals had little evidence to consider beyond the decree which indicated the $25,000 judgment was awarded as to Gina for Todd’s fraud on the community estate. Without a reporter’s record, the Court of Appeals must assume the evidence presented was sufficient to support the trial court’s order.